The archived blog of the Project On Government Oversight (POGO).

May 07, 2008

Internal Draft Document Reveals Bloch-Headedness

POGO has gained access to an extraordinary internal document from the Office of Special Counsel, an independent federal agency charged with protecting whistleblowers from reprisal. Clearly marked "DRAFT," it is a memo dated January 18, 2008, to Special Counsel Scott Bloch from the members of a special task force. The task force was created, according to the memo, in May 2007, "to pursue certain complex and high profile investigations, such as the firing of the U.S. Attorneys and the political presentations given by the White House Office of Political Affairs (OPA)." The stated subject of the memo is "Summary of Task Force Activities and Recommendations," but it reads at times like an anguished cry from investigators charged with an important mission but virtually every recommendation they make is countermanded by their boss. If they recommend going forward with an inquiry, Bloch says no. If they say they lack evidence or jurisdiction, he orders them to go forward.

The inescapable conclusion reached from poring through the contents of this 13-page memo is that Bloch was deliberately creating the impression of a huge ongoing multi-faceted investigation of the White House--at the same time that he himself was being investigated by another arm of the White House for various forms of misconduct. [NOTE: someone used a highlighter on the document, making certain passages nearly impossible to read. We have transcribed those darkened parts here.]

Here is my analysis, along with some juicy quotes.

Office of Political Affairs:The task force (TF) began to examine allegations that 25 federal
agencies had received political briefings from the White House Office
of Political Affairs that may have violated Hatch Act bans against the
use of government resources to promote or oppose a political party or
candidate. The task force received hundreds of documents from the
agencies and thousands from the White House about the briefings. But as
the investigators proceeded in their classic methodical way, they
received new directions from their boss: transfer a Hatch Act complaint
against Commerce Secretary Gutierrez from the Hatch Act Unit to the
task force); merge two complaints against Karl Rove into the ongoing
OPA investigation; draft new requests for information to the White
House demanding copies of all email sent or received by 50 OPA
employees from January 2001 through November 2007, from both the
employees' government accounts and their RNC accounts.

The first cry of anguish followed: "TF expressed concerns that this
request is too broad and may exceed OSC's jurisdiction" (emphasis in
original).

But there was more. The Special Counsel demanded that the TF seek
even more records from the White House: all travel records on Air Force
One; all procedures for telephone and fax machines; all grant awards,
etc. Again the protest from the task force: "After reviewing all
documentation received and finding no information or evidence to
suggest that agencies directed grants or agency resources to help
candidates or political parties TF believes this request is overly
broad."

The task force recommended ways to narrow the investigation, but
Bloch denied them. When the task force drafted a letter and subpoena to
the RNC, Bloch returned the draft with the order that it be expanded to
include ten new topics.

U.S. Attorney Firings:After former U.S. Attorney David Iglesias filed a complaint with the
OSC alleging that his discharge may have violated the Hatch Act, the
task force was ordered by Bloch to broaden the inquiry to all nine U.S.
Attorneys who had been fired. According to the task force's memo, to
establish a Hatch Act violation, there must be proof that an individual
employed by an executive branch agency had used official authority to
influence the results of an election. Iglesias had complained about
calls he had received from Sen. Pete Domenici and Rep. Heather Wilson,
both Republicans of New Mexico. The Justice Department meanwhile sent
more than one letter to OSC asking it to suspend its investigation
pending DOJ's criminal inquiry. Bloch writes Justice saying OSC will
not suspend, even though "TF does not find any evidence of a Hatch Act
violation…and expresses concern about the lack of any evidence that
there was a Hatch Act violation."

Political Hiring Practices and Personnel Decisions at Justice Department:Following public hearings in Congress from former Justice Department
officials that "certain officials at DOJ took into consideration
political affiliation when determining whether to hire or promote
certain individuals," along with testimony from the former chief of the
Voting Section of the Civil Rights Division that he was ordered to
change evaluations of attorneys based on political affiliation, the
task force recommended "that this case be opened immediately and that
the TF investigate whether individuals at DOJ committed any PPPs (prohibited personnel practices) when they took political affiliation
into consideration when hiring and making other personnel decisions."

Nine days later, "TF is told that the Special Counsel has directed
the TF not to open or investigate allegations concerning DOJ political
hiring practices." Throughout August and September 2007, the TF
continued to request permission to investigate these allegations,
"arguing the sworn testimony before Congress appears to establish a
prima facie case of numerous PPPs."

Finally, in November, the task force was given permission to open a
case--but "no other activity or devotion of resources authorized at
this time."

Possibly Politically Tainted Prosecution:The task force opened files concerning prosecution of the former
Democratic governor of Alabama, Don Siegelman, and allegations that the
prosecution had been pursued following directions from Karl Rove at the
White House. But then "TF is informed that the Special Counsel did not
authorize the Task Force to investigate these allegations and that do
so [sic] is a breach. The Special Counsel requests that this file be
closed immediately."

Voter Registration Fraud Case:Indictments were filed against four individuals associated with a
liberal organization, ACORN, for engaging in election fraud. ACORN had
reported the fraud itself and had fired the individuals, but a senior
Justice official in Washington rushed to file the indictments a few
days before the 2006 election, despite clear DOJ policy against
bringing such actions right before an election because of the
possibility of influencing the outcome.

The task force wrote a memo "outlining the reasons that the Hatch
Act case investigating this matter should be opened.” The Hatch Act
expressly forbids any Executive Branch official from taking actions
that might influence an election. The task force was told they were
"not authorized to open up this file." The task force protested
strongly:

Because the facts raise the strong possibility of violations of two
Hatch Act provisions, the TF requests that a case file be opened into
these allegations. OSC is the only agency charged with enforcement of
the Hatch Act…it could be perceived that the Office of Special
Counsel was abdicating its responsibility to enforce the Hatch Act if
we were to take no action in this matter. More importantly, [if the
actions were]…an attempt to affect the results of an election, this
would constitute one of the most egregious violations of the Hatch Act.

Second Investigation of Lurita Doan:When Special Counsel Bloch ordered a new investigation of GSA
Administrator Lurita Doan be opened, the "TF raised objections to this
request because OSC had previously concluded its investigation into
Lurita Doan and had referred the matter to the President for
disciplinary action. The TF was directed to investigate whether Doan
had a larger scheme in place to use agency resources for political
purposes."

Bloch ordered the task force to request documents from the Office of
the Inspector General at the Department of Homeland Security regarding
a 2005 investigation of Doan's husband. The task force objected, saying
it would be improper since "Doan was not a federal employee at the time
of the DHS OIG investigation." But the task force was ordered to go
forward and to particularly request a email message dated May 2005 from
Lurita Doan to her husband.

The DHS OIG response was received at OSC in July 2007 but not given
to the task force until November. At that point the task force was
dismayed to discover that the "DHS OIG investigation is not related in
any way to the May 17, 2005 email and questions why DHS produced the
investigative file." The task force again two weeks later expressed its
concern that the DHS OIG report was "not related to anything that OSC
is currently investigating and the allegations in the report fall
outside of OSC jurisdiction." The task force also expressed concern
that the DHS OIG had provided information that "greatly exceeds, and
arguably is unrelated to" the OSC request. The task force renews its
recommendation that the case be closed since there is no evidence or
information to support the allegations.

Karl Rove:The task force was ordered to investigate allegations that White
House official Karl Rove had violated the Hatch Act by engaging in
unlawful political activity during the 2006 election period. The task
force learned that all of Rove's travel had been designated political
and thus no official funds had been spent on it. Further, they found
that on the one trip where Rove traveled on Air Force One on what had
been wrongly attributed to official business, reimbursement had already
been made.

Nevertheless, additional requests for information were prepared and
sent to the White House regarding Rove's travel. As previously noted,
the Rove cases were ordered by Bloch to be combined with the huge
all-encompassing OPA case in November 2007.

Comments

There's a lot more to this than meets the eye. I applaud this media outlet for getting at the truth of the matter. Karl Rove's fingerprints are all over this thing. Go to donsiegelman.com for the rest of the story.

To "Ms/Mr Anonymous" on May 7 re settlements labeled by POGO as instances of wrong-doing.

Lawyers tend to be literalists. Words matter. They use that operating style--not a bad one actually, unless you want to spin or be spun or believe in spinning, a la, "that depends on what the meaning of is is"--for their own purposes. Legal counsel in the government do it, K street lawyers do it. Surely, with such expert advice, settlements mean something.

Settlements mean some form of agreeing to disagree, and the matter is closed. The formality of outstanding allegations goes away. The "evidence" put forward--which could have been found to be true and compelling--or not--in a trial does not go away. You are free to re-use it, at your own risk, I suppose. For example, you can still tag a company -- or a government official-- for misbehavior with that very same set of purported facts, but the fact remains that all they are is allegations, unproven, however inviting they may be to believe.

A straight, conservative KO or SSA would not be using such information if s/he takes the FAR and his/her warrant or appointment seriously. On the other hand, a trial verdict, a fine paid, a criminal conviction, a contract termination for cause, or a conviction for mooning in the public square--all that could be used, for example, to find a potential awardee not responsible, or to disqualify some of its proposed examples of pertinent past performance.

Supermarket tabloids, cable news pundits, and their ilk misapply allegations all the time. If you want to engage in that, fine. You'll be in the same category as Rush, Billo, and Hillary Clinton.

But you might want to engage in a little caution when you smear a corporation or individuals with a settlement with things you haven't been proven or which are not "clear on their face." There are the things you want contracting officers and source evaluation panels to judge up or down. You could be wrong, you could be unfair, you could be sued. But most of all, you'd be really sleazy. If that's your style, have at it.

Your reference to POGO's "catalog"and staff is misplaced and silly. Are we to assume that every settlement made between the government and a contractor is baseless and shouldn't be public because the contractor fails to admit wrongdoing? I don't think so! POGO's catalog might have some flaws, but even the GAO (GAO-05-479) and Paul Denett (M-06-26) think that government officials should share administrative agreements. I'll assume that they mean all administrative agreements, and not just those in which the contractor admits wrongdoing. Are they biased and lack facts too? Is POGO really that far off here?

Working for POGO may not be a good enough resume item, in the view of the NYT, because of possible inference of bias and lack of respect for the facts, for example, producing the catalog of contractor wrongdoing that includes settlements with no proof or admission of wrongdoing authored by Scott Amey. Outside of that, even if she had nothing to do with the catalog, she might make a swell reporter.